Louisville Water Company v. Darnell

• Decision Date: 03 December 1920
• Citation: 189 Ky. 771
• Parties: Louisville Water Company v. Darnell.
• Court: Kentucky Court of Appeals

189 Ky. 771

Louisville Water Company v. Darnell.

Court of Appeals of Kentucky.

Decided December 3, 1920.

Appeal from Jefferson Circuit Court (Common Pleas, First Division).

FRED FORCHT and CHARLES W. MORES for appellant.

SAMUEL G. TATE and JOHN C. TATE for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing.

Appellee and plaintiff below, Isaac Darnell, is a person of mature years and on December 15, 1915, was an employee of the appellant and defendant below, Louisville Water Company, and with a crew of hands was assisting in laying a large water main along the Brownsboro road in or near the corporate limits of the city of Louisville. According to the testimony of plaintiff he was directed by defendant's foreman to assist another to remove the dirt from around a stone gate post which stood immediately in the way of the ditch which others were digging in which to place the water main. While digging around the post plaintiff reached the bottom of it and it careened and caught him against the bank of the hole he had dug and injured him. To recover damages for the injuries sustained he filed this suit, alleging that defendant had violated the duty it owed him to furnish him a reasonably safe place in which to work and in adopting and directing plaintiff to pursue a dangerous method of performing the work; that defendant knew of such dangers, which were unknown to plaintiff, and by reason of which he was entitled to recover for the damages he sustained. The answer contained a denial of the averments of the petition and also affirmative pleas of contributory negligence and of assumed risk. The affirmative defenses were denied by a reply and upon trial there was a verdict in favor of plaintiff for the sum of twenty-five hundred dollars ($2,500.00) upon which judgment was rendered, and defendant's motion for a new trial having been overruled it prosecutes this appeal.

The two principal grounds urged against the judgment are, (1) error of the court in overruling defendant's motion for a directed verdict, which motion was made at the close of plaintiff's testimony and renewed at the close of all the testimony, and (2) the refusal of the court to submit to the jury, as requested in an offered instruction, the defense of assumed risk. We have closely studied the record, briefs of counsel and the cases relied on therein, as well as many others, and we have unhesitatingly come to the conclusion that the evidence fails to establish any cause of action in favor of plaintiff, and that defendant's offered peremptory instruction should have been given. The stone post which plaintiff was assisting to remove had been used as a gate post and was something like two or two and one-half feet square at the bottom, but smaller at the top and projected above the ground, according to the testimony, between six and eight feet and was embedded in the ground about two and one-half or three feet. It would be difficult to imagine a more simple or less complicated piece of work than that of digging up a post. It is no less complicated than the work of felling a tree. The one performing the work, if he has ordinary intelligence (as plaintiff is shown to possess) knows that the natural law of gravitation would cause the post to careen and fall when the dirt supporting it was removed from around and underneath it, just as a tree would fall when the trunk is severed from the stump. This court has held in a number of cases, following all of the authority upon the subject, that a servant of ordinary and average intelligence is conclusively presumed to know or to take notice of the ordinary and well understood laws of nature and to govern himself accordingly in the performance of his work. Furthermore, a servant will also be charged with knowledge of the existence of that which is before his eyes and which he could not help seeing and appreciating. Some of the many cases from this court so holding are: American Milling Co. v. Bell, 146 Ky. 68; Wallsand Coal & Coke Co. v. Shields' Admr., 159 Ky. 644; North Jellico Coal Co. v. Disney, 161 Ky. 605; Hassett & Co. v. Richardson, 169 Ky. 342; New Hughes Jellico Coal Co. v. Gray, 173 Ky. 337; Oyen v. Willings, 183 Ky. 742; Pruitt v. Norfolk & Western Ry. Co., 188 Ky. 204; Hutchison v. Cohankas Mfg. Co., 112 S. W. (Ky.) 91; Wilson v. Chess-Wymond Co., 117 Ky. 567, and many others referred to in those opinions. Some of the cases cited, if not all of them, also announce the principle that the "safe place" doctrine does not apply when the particular work of the servant, in the prosecution of which he is injured, has for its very purpose the creation of the danger from which the servant was injured; nor does the "safe method" doctrine apply where the servant selected his own method of doing the work. Without encumbering this opinion with a recitation of the facts in each case we will incorporate from some of them the language of this court embracing the rule just adverted to. In the American Milling Company case the court said: "The rule is also that the master is not responsible for a danger which the servant himself creates in the progress of the work. If the master exercises ordinary care to furnish the servant a reasonably safe place to work and the servant in the course of his work makes the place unsafe, and is injured by reason of a peril which he himself created, the master is not liable. (Big Hill Coal Co. v. Abney, 125 Ky. 355; Smith v. North Jellico Coal Co., 131 Ky. 196.)" In the Shields case the language is: "Where a minor is engaged in pulling a (coal) stump, the stump itself is his working place. The perils to which he is subjected are those of his own creation. They grow out of the progress of the work. The duty of the master to use ordinary care to furnish the servant a reasonably safe place to work does not apply where as a result of the servant's work the character of the place is constantly changed, and the place itself becomes dangerous either necessarily or from the manner in which the work is done. Smith's Admr. v. North Jellico Coal Co., 131 Ky. 196; Labatt Master and Servant, section 588; Cleveland, C. C. & St. L. R. Co. v. Brown, 20 C. C. A. 147. Here the outside of the rock did constitute a part of the entry, but the rock itself was above the coal in the stump. It would not have fallen had not the coal been removed. The coal was removed by Shields. Having removed the coal and thus created the danger, it was Shields' duty either to sound the top and remove the rock, or use props to prevent it from falling." In the Disney case it is said: "He (the servant) created the danger himself, and his death was due wholly to a condition which he himself brought about." In the Richardson case, the court, under facts very similar to those we have here, in excusing the master from liability and directing a peremptory instruction in its favor, said: "A grown man of average intelligence is bound to take notice of the ordinary laws of nature. He must know that if a sufficient force is applied by a steam shovel to an overhanging rock the rock will fall, and if it does fall, it will injure those who are near enough to be struck by it. Clearly the safe place doctrine has no application to the...